Coats of Arms: Legal Foundations, Protection, and Use
Definition and historical background
Ein Coat of arms is a heraldic symbol characterized by a distinctive shield shape and certain colors, figures, as well as symbols. Originally, coats of arms primarily served to identify individuals, families, institutions, cities, and states. Their use is determined by traditional rules – heraldry. From a legal perspective, the coat of arms is an intangible protected object with various normative regulations.
Legal classification and protection of coats of arms
Coats of arms as legal entities and objects of protection
Coats of arms are legally classified as signs used by holders for identification and to convey a specific indication of origin. Unlike trademarks or brands, the coat of arms is a state or sovereign symbol whose protection and use are comprehensively regulated. Rights to coats of arms may be held by both natural and legal persons as well as public law entities such as municipalities, federal states, and the state.
National law: German law on coats of arms
Public coats of arms
The use of public coats of arms, such as the federal eagle or state and municipal emblems, is regulated in Germany by various laws and regulations. The use of these symbols is reserved exclusively for authorized entities. The legal bases include, among others:
- Basic Law for the Federal Republic of Germany (Art. 22 paragraph 2: Federal coat of arms)
- Act on Regulatory Offences (Section 124 OWiG: Misuse of coats of arms, official or service titles)
- Municipal state laws (Regulations on the use of municipal coats of arms)
- Special laws and heraldic ordinances for specific institutions
Unauthorized use of public coats of arms is generally prohibited and can be sanctioned as a regulatory offense or even a criminal offense.
Coats of arms of private legal entities
Family coats of arms and those of private organizations are subject to different legal frameworks. They are mainly protected against unauthorized use by third parties through the right to a name (§ 12 BGB) and competition law (UWG).
- Right to a name (§ 12 BGB): Anyone who uses a coat of arms to which another is entitled without authorization may violate that person’s legally protected name and identification function.
- Competition law: The use of another party’s coat of arms can constitute unfair competition (§§ 3, 5 UWG).
Duration of protection
The protection of a coat of arms generally exists as long as the entitled party has an interest in using it and there are no other legal obstacles. In particular, family coats of arms retain their protective effect as long as they remain in use by the respective family.
International law on coats of arms
There are also regulations at the international level protecting coats of arms:
- Paris Convention for the Protection of Industrial Property (Art. 6ter PC): Protection of state coats of arms, official emblems, and international organizations.
- Madrid Agreement: Provisions regarding the protection of official coats of arms in the context of trademark registrations.
Special legal considerations relating to coats of arms
Registration and certification
Unlike trademarks, coats of arms are not entered into an official register in Germany. Certification of family coats of arms is usually carried out by private heraldic societies or organizations. There is no legal basis for official registration.
Transfer and inheritance
The right to use a private coat of arms is basically linked to the right to a name and family affiliation. The transfer generally occurs along with the passing on of the name. Individual sale of the coat of arms is not legally provided for and is uncommon in heraldic practice.
Distinction between coats of arms and trademarks
Coats of arms are not trademarks as defined by trademark law; however, they have similar functions (differentiation, identification). Double use of a coat of arms as a trademark is possible, provided that the signs are clearly distinguishable from each other and there is no risk of confusion with official emblems.
Abuse and legal consequences
The misuse of unauthorized coats of arms can trigger various legal consequences:
- Defensive claims: Injunctions, removal as well as potential claims for damages (e.g. against misuse by third parties).
- Regulatory offenses: Administrative fines for the misuse of official emblems (see Section 124 OWiG).
- Criminal consequences: Criminal liability under Section 132a of the Criminal Code for unauthorized wearing or use of official insignia.
Design and legal admissibility of coats of arms
Design regulations
Particularly for public coats of arms, there are clear regulations regarding design, colors, and symbolism, which are prescribed and protected by law or statutes. The design of private coats of arms is generally up to the founder; however, it must not violate existing rights of third parties or statutory provisions.
Risk of confusion and distinctiveness
Protection of the coat of arms only exists if it is distinctive and there is no risk of confusion with existing coats of arms or official symbols. Too close a resemblance to an official coat of arms may have legal consequences and result in a prohibition on use.
Use of coats of arms in media, business, and society
The depiction and use of coats of arms in media, on products, or for commercial purposes must respect the rights of the coat of arms holder as well as any applicable legal provisions. Unauthorized reproduction or use of public coats of arms, for example on souvenirs, may be inadmissible.
Summary
The coat of arms is a legally protected symbol, whose use is regulated nationally and internationally by various statutes. While public coats of arms are subject to strict purpose limitation and extensive protective provisions, private coats of arms may be protected by the right to a name and competition law. The misuse of coats of arms entails different civil and criminal legal consequences, with particular significance attached to distinguishing them from official emblems. Careful observance of the legal framework is essential for the lawful use and bearing of coats of arms.
Frequently asked questions
Who is legally entitled to bear a coat of arms?
Entitlement to bear a coat of arms is not regulated in German law by any specific statutes; rather, general principles of the law of names and personality rights apply. Natural persons, families, or legal entities can in principle bear a coat of arms, provided that they have either adopted it themselves or received it lawfully (for example through inheritance or transfer). The use of another person’s coat of arms without the relevant entitlement may constitute an infringement of personal rights and potentially trigger claims for injunctive relief and removal by the rightful owner. For family coats of arms, it should be noted that, as a rule, all descendants are entitled to bear it, although the legal discussion is more nuanced, particularly regarding illegitimate descent or adoption. For association or company coats of arms, the bylaws and, if applicable, trademark law must be observed.
Which rights are protected by the law on coats of arms in Germany?
A specific ‘law on coats of arms’ does not exist as an independent area of law; rather, the protection of a coat of arms involves several branches of law: For example, the right to a name (§ 12 BGB) protects the family’s right to use a particular coat of arms as an expression of traditional family identity. Copyright law may apply if the coat of arms achieves the necessary level of creativity and thus qualifies as a work of visual art (§ 2 UrhG). Additionally, trademark law (§ 4 MarkenG) must be observed if the coat of arms is used as a distinctive sign for goods or services. Improper use of official emblems (e.g. state coats of arms) is subject to fines under § 124 OWiG. Finally, the right to one’s own image applies if a coat of arms creates a direct link to a person.
How can unauthorized use of a coat of arms be legally pursued?
If a coat of arms is used by third parties without legal authorization, civil claims for injunctive relief and, where applicable, damages may arise. The legal basis for this, in the case of family coats of arms, is the right to a name (§ 12 BGB), under which the injured party can act against unauthorized use of their name (and thus also their coat of arms). If the coat of arms is protected by copyright, the owner of the rights can also assert claims under § 97 UrhG. If the coat of arms is a registered trademark, further claims may be available under trademark law, for example under § 14 MarkenG (trademark infringement). Enforcement is generally carried out through cease-and-desist warnings and, if necessary, by preliminary injunction or lawsuit before the civil courts.
Is registration of a coat of arms legally required or necessary?
For family coats of arms, registration in an official register, such as the German Roll of Arms at the Herold (Heraldic Association) or at the association ‘Der Deutsche Herold’, is neither legally required nor a prerequisite for the legal validity of the coat of arms. Such registration primarily serves evidentiary and publicity purposes and is largely declarative in nature; the right to use the coat of arms arises from the first lawful adoption or entitlement. The situation is different for association or company coats of arms that are to be registered as trademarks: In such cases, registration with the German Patent and Trademark Office (DPMA) is required in order to obtain trademark protection.
What legal peculiarities apply to official (state) coats of arms?
The use of state or official coats of arms in Germany is strictly regulated by special laws. Federal and state coats of arms may only be used by authorized institutions and in expressly permitted contexts. Unauthorized use of such official emblems constitutes a regulatory offense (§ 124 OWiG), may be punished by fines, and can also trigger civil claims for injunctions. In addition, state coats of arms are generally not eligible for trademark protection; registration as a trademark is expressly excluded by § 8 para. 2 no. 6 MarkenG.
How long does a family coat of arms receive legal protection?
Protection of a family coat of arms is fundamentally unlimited in time and continues as long as the entitled family or its descendants exist and carry on the coat of arms. Unlike copyright and trademark law, there is no fixed period after which the right to bear the coat of arms expires. However, it is a requirement that the coat of arms continues to be used as part of the name and as an identifier. If a family ceases to exist, or if institutions no longer continue, protection may end with the extinction of the rightful bearer; ‘reuse’ must then be legally reassessed.
What must be considered legally when acquiring or inheriting a coat of arms?
A coat of arms is usually acquired through descent, adoption, or express transfer (for example, by a letter of arms). In the case of inheritance, it is decisive whether the heir belongs to the family community or has obtained entitlement through adoption. The sale or acquisition of a coat of arms without a legal connection to the foundation or family of the arms is, according to prevailing opinion, not permissible and could even be considered immoral (§ 138 BGB). For institutionalized coats of arms (companies, associations), the relevant bylaws or corporate agreements govern the modalities of transfer.
